Legal Theory Lexicon 043: Formalism and Instrumentalism

Introduction

American law students learn about formalism and instrumentalism early on—although those particular terms may not be introduced explicitly in classroom discussion. Many law students hunger for “black letter law": they are looking for legal rules that can be memorized and applied to the facts in a more or less determinate (or even "mechanical") fashion. But in most law school classrooms, this hunger is not satisfied. Instead, the discussion is likely to focus on another set of questions: What should the rule be? What is the purpose of the rule? Would the application of the rule to these facts serve its purpose? Does that rule make sense? And so on. Of course, different professors have different ideas about what makes for good legal rules. Some emphasize good consequences—perhaps as defined by the economic concept of efficiency. Others might emphasize considerations of fairness or distributive justice. Many are progressive or liberal; a few are conservative or libertarian.

In constitutional law, “black letter law” sometimes seems to disappear entirely. Instead, there is a Supreme Court that seems to act as some sort of super-legislature, resolving the great questions of the day, whether it be “Who shall be President?” or “May states criminalize sexual activity between persons of the same sex?” or “Shall abortion be legal?” Moreover, students quickly learn that the constitutional text does not seem to be much of a barrier to a result that the Court really wants to reach. An obvious example is Bolling v. Sharpe in which the Supreme Court applied the substance of the equal protection clause to the federal government—even though it is unmistakably clear that the 14th amendment applies only to the state.

But even today (and in some ways, especially today), law students are likely to be exposed to another set of ideas about the law. They may have a rather old fashioned professor who insists on discussing cases or statutes as if they did provide rules that decided cases. Some students encounter constitutional law professors who insist on the “original meaning” of the Constitution—discussing lots of history (and fewer cases) than their colleagues. In some courses, students run into professors who talk about “plain meaning” approaches to statutory interpretation.

In other words, the legal academy is divided in its allegiance to various forms of legal formalism and legal instrumentalism. This entry in the Legal Theory Lexicon introduces the formalism-instrumentalism debate. As always, the discussion is aimed at law students—especially first year law students—with an interest in legal theory.

Legal Formalism

What is legal formalism? The terms “formalism” and “formalist” are thrown around quite a bit, but they turn out to be surprisingly difficult to define. In fact, many law students and even some legal academics have only a very vague notion as to what “legal formalism” really means. You may have heard something like the following

Legal formalism? That’s “mechanical jurisprudence,” when a judge decides a case without thinking about the consequences or the purpose of the rule.

In other words, “legal formalism” is sometimes used as pejorative label for unthinking and unintelligent legal reasoning. We can do better than that. Let’s begin with some of the things that scholars or judges who self-identify as formalists say:

Judges should apply the law and not make it.

There are legal rules that constrain what legal actors may lawfully do.

There is a difference between following the law and doing what you think is best.

Judges should decide cases in ways that are consistent with the text of the applicable constitutional or statutory provision or with the holding of controlling precedents

This list go on and on, but you get the general idea. The core idea of formalism is that the law (constitutions, statutes, regulations, and precedent) provide rules and that these rules can, do, and should provide a public standard for what is lawful (or not).

That is, the core of legal formalism entails a commitment to a set of ideas that more or less includes the following:

1. The law consists (at least in part) of rules that are derived from the linguistic meaning (or communicative content) of authoritative legal texts.

2. Legal rules can be applied to particular facts.

3. Some actions accord with meaningful legal rules; other actions do not.

4. The standard for what constitutes following a rule (or not) can be publicly knowable and the focus of intersubjective agreement.

Contemporary legal formalism is particularly prominent in two areas, constitutional law and statutory interpretation. In constitutional law, formalism is associated with “originalism,” the view that the constitution should be interpreted in accord with its “original meaning.” In statutory interpretation, formalism is associated with the “plain meaning” theory—that statutes should be interpreted so that the words and phrases have their ordinary meaning. Plain meaning approaches are also associated with the view that legislative history should not be used, especially if it would result in an interpretation that differs from the text of the statute. Of course, plain-meaning theories of statutory interpretation could (and should) adopt the originalist thesis that "meaning" (or "plain meaning") is fixed at the time the text is drafted and promulgated.

Legal Instrumentalism

Legal instrumentalism is one of the ideas that are strongly associated with American legal realism—the great movement in legal thought that is usually associated with Oliver Wendell Holmes, Jr.—as a sort of parent—and with figures like Roscoe Pound, Karl Llewellyn, Felix Cohen, and Jerome Frank. Like formalism, instrumentalism is often ill defined, but most instrumentalists would agree on the idea that legal rules should be interpreted in light of their purposes. When applying the letter of the law would undermine its purpose, then the rule should be interpreted so that it does not apply. And likewise, if the spirit of the law would be served by its application, then judges should give the rule an expansive interpretation. Some instrumentalists may go beyond this, and argue that judges should sometimes nullify statutes that are bad policy or create judge-made rules, when that would serve the ends of good policymaking.

The Realist Critique of Legal Formalism

It is easy to see how realists or instrumentalists would critique legal formalism. If a formalist judge follows the plain meaning of a statute, that might lead to its application even in cases where it would be harmful and contrary to the intentions of its drafters. This is “unthinking” or “mechanical jurisprudence. Moreover, some realists argued that legal formalism was actually as sort of fraud. Judges don’t really follow the plain meaning—the argument goes. Rather, so-called formalist judges really decide on the basis of their own policy preferences and then dress up the results in the language of legal formalism. Some realists may have believed that ideology does the work in legal decisionmaking; legal formalism dresses it up so that it looks "legitimate."

The Modern Revival of Legal Formalism or "Neoformalism"

Despite the sustained realist critique, legal formalism has been making a come back of late. One reason for the comeback is a realization that extreme versions of instrumentalism make it very difficult to know what the law is, in advance of a judge’s decision in a particular case. The point of hard law (determinate legal rules which draw relatively “bright lines”) is that they provide certainty, stability, and predictability to the law. Purposes provide less guidance, and different judges are likely to have different opinions about what the true purposes of the rule may be.

Political ideology has also played a role in the formalist revival. Some (but not all) formalists are especially disturbed by the results reached by the Warren and Burger Courts in prominent constitutional cases—like Roe v. Wade. Some of these critics may see legal formalism as a judicial philosophy that can rationalize the dismantling of these controversial precedents.

Because the terms "formalism" and "formalist" carry a lot of baggage, some contemporary formalists prefer to use the terms "neoformalism," "textualism," or "new textualism" as labels for their position. Likewise, some contemporary originalists refer to "the new originalism" to distinguish their position from others that are called "originalist."

A Word About the History of Formalism and Instrumentalism

Although many contemporary legal theorists take it for granted that there was a sharp divide between "legal formalism" and "legal instrumentalism" at some prior historical period. It is not clear that is the case. The judges and thinkers that are sometimes labeled as formalists frequently displayed an awareness of the role of "policy" and "purpose" in legal decisionmaking. And many so-called "legal realist" or "instrumentalist" judges believed that the core meaning of authoritative legal texts limited the legitimate use of instrumentalist considerations in judging. The line between the historical figures we now call instrumentalists and formalists may have been quite fuzzy indeed.

Conclusion

The debate between formalists and realists is lively and fundamental, but frequently conducted in a fairly simplistic manner. The best advice I can give for approaching this debate is to be careful about how the conceptual territory is mapped and the terms are defined. Much of the seeming disagreement between formalists and instrumentalists flows from different conceptions of where the dividing lines lie.